Engineer Four, a P. Eng.

working for BluE-Power, is managing a run-of-the-river (ROR) construction project being built on First Nations land. The site is in an ideal location on a high flow section of the river. It will be able to provide clean energy to the First Nations band as well as several other remote communities which currently rely on diesel generators. The onehundred member First Nations band has agreed to the construction and entered into a contract with BluE-Power. The contract lays out terms for the construction and guarantees the First Nations band free access to electricity as well as 1% of the profit for electricity sold to other communities through BC Hydro. Compensation for construction and environmental effects is also written into the contract. Construction has already started on project when members of the First Nations band contact Engineer Four with concerns about the affect of the construction on the environment and their well-being. They are asking for greater compensation than was agreed upon in the contract to remedy the environmental effects or else the construction will have to be halted. Engineer Four has a good relationship with the members of the band and they trust that he will take their concerns into consideration. However, if he promises them greater compensation his superiors will be displeased with the additional expense. As a smaller company it could have a great effect on their profits. Engineer Four believes the original contract is strong enough to see through the construction without additional compensation while using his rapport with the band to smooth over any difficulties. He must decide whether to agree to additional compensation to the First Nations band for the environmental and social effects or continue as per the original contract. In the argument for additional compensation or project shut-down, Engineer Four must consider the environmental observations of the members of the First Nations band. The spotted owl has allegedly been noticed flying in and out of site. Biologists claim that no owls were spotted in the area before the start of construction; however, recently the First Nations band has noticed several nests perched very close to the site. Additionally, members of the band have observed a reduction in the number of fish in the river which they rely on to sustain their families. In argument for continuing construction with no additional compensation, Engineer Four considers the benefits already provided to the First Nations band by the project as well as the existing contract in place. This course of action would save a great deal of money for his company if it is justified. The benefits are the elimination of diesel generators from the community and the profit provided from the sale of electricity. In the past few years, diesel generators has proven to be an inefficient method of providing a continuous source of electricity and are only used as a backup generator or in places where there is no access to main power grid. The particulate from diesel emission is not only harmful for the environment but is a serious airborne carcinogen. Research show that a standard one-megawatt diesel engine operating for 250 hours per year could result in 50% increase in cancer risk extending up to one city block (Diesel Generators, 2011). With the completion of the hydro electric generator, the native band is promised free access to a clean source of electric energy. This would not only save the band money but also improve the

health quality of the surrounding area. Prevention of the project and persistence of the use of the diesel generator will in fact be in violation of Canadian Environmental Protection Act under chapter four Pollution Prevention section 56.1 (Government of Canada, 2011) Engineer Four also could rely on the existence of the contract as an argument for continuing the project without additional compensation. The First Nations band intended to create a legal relationship with the construction of the hydro plant. It is assumed there was offer and acceptance and since consideration exists in the form of power and 1 % revenue, the offer to build becomes legally enforceable (Dunbar & Gannon, 2009). Legality exists because the contract does not offend the public good (Miller, 2011). Although at the time of the contracts inception the First Nations band had mental capacity to contract and could reasonably foresee that the land would be affected, therefore had legal capacity to contract (LCO, 2009.) After considering both positions and the arguments for and against providing additional compensation, Engineer Four must choose to provide the First Nations band with additional compensation to remedy the environmental effect caused by the construction of the ROR project. As an engineer, he must uphold his responsibility to the environment and welfare of the First Nations band. Potentially destroying the natural habitat of the spotted owl as well as affecting the fish in the river would violate the first tenet of the APEGBC Code of Ethics which states engineers must hold paramount the safety, health and welfare of the public, protection of the environment and health and safety within the workplace. (APEGBC). This course of action would see Engineer Four fulfill his duties, or universal obligations and rules of conduct (Grace, 2011) towards the members of the First Nations band.

Individual Sections For: Eliminate diesel generators which are inefficient and polluting (jimmy) Due to the remoteness of the native band village, there is currently no power grid framework implemented in the area where they reside. The native band has been dependent on the use of diesel generators as their primary source of electricity. In the past few years, diesel generators has proven to be an inefficient method of providing a continuous source of electricity and are only used as a backup generator or in places where there is no access to main power grid. The particulate from diesel emission is not only harmful for the environment but is a serious airborne carcinogen. Research show that a standard one-megawatt diesel engine operating for 250 hours per year could result in 50% increase in cancer risk extending up to one city block (Diesel Generators, 2011). With the completion of the hydro electric generator, the native band is promised free access to a clean source of electric energy. This would not only save the native band money but also improve the health quality of the surrounding area. Prevention of the project and persistence of the use of the diesel generator will in fact be in violation of Canadian Environmental Protection Act under chapter four Pollution Prevention section 56.1 (Government of Canada, 2011). Project was already agreed in a contract (Kareem)

Employment contracts allow parties to address and agree to common law duties (Bull, et al., 2007). The contract, at its inception, contained all the elements of a legal contract (Dunbar & Gannon, 2009): intention to create legal obligations, an agreement resulting from an offer (or offers) and acceptance, consideration, the legal capacity to contract, and legality

The native band intended to create a legal relationship with the construction of the hydro plant. It is assumed there was offer and acceptance and since consideration exists in the form of power and 1 % revenue, the offer to build becomes legally enforceable (Dunbar, & Gannon, 2009). Legality exists because the contract does not offend the public good (Miller, 2011). Although at the time of the contracts inception the native band had mental capacity to contract and could reasonably foresee that the land would be affected, therefore had legal capacity to contract (LCO, 2009.)

It is in the interest of the native band to be self-sufficient and running on hydro-power and can generate income from power production (peter) The power station is a great demonstration of the peaceful relationship between the government of Canada and the First Nation. In this project, the Native band is getting benefit from the power station as green source of energy for their community. This project gets the First nation involved into cooperative ventures without getting spending any capital (Perrin, 2009:P 25). Therefore, it is for the interest of the native band to continue this project and not only receive a green source of energy but they would be also benefiting all the Canadians. Against:

Concerns regarding spotted owl (Alex) The spotted owl has been an endangered species for several years now and has been noticed flying in and out of site. Biologists claim that no owls were spotted in the area before the start of construction; however, recently the Native band has noticed several nests perched very close to the site. The owl is a sacred animal and important part of the Native band environment. Destroying their natural habitat would place the owls safety at risk and would violate the first code from APEGBC stating hold paramount the safety, health and welfare of the public, protection of the environment and health and safety within the workplace. (APEGBC Code of Ethics). Lower fishing catch rate observed (Lewis)

The contract clearly stipulates that there was to be no effect on the fish population of the river by the new power plant. However, members of the band have observed a reduction in the number of fish they are catching, and they rely on these fish to sustain their families. They are also a vital part of their culture, so the band is asking for increased compensation from the company in the form of a higher percentage of revenue.

Construction impact has not been minimized as promised (Matt) As the construction has progressed the band has noticed a greater impact than had been conveyed in the contract. A much larger area of trees has been removed than originally agreed upon. Also, care in preserving the original environment has not been taken by the company, to the extent in which was laid out by the contract. In breach of the contract by the company the band feels that sufficient damages must be paid for the construction impact. The breach of contract is found to be sufficient under the terms laid out by (Miller, 2011). The company has the duty to remedy their wrongdoings by compensation to the band, therefore the band has requested a higher percentage of revenue.

Suggestion from Mike: <describe compensation as damages...same way its described in course notes> <emphasize the companys duty to remedy their wrongdoings...also same description as course notes>

Additional against point in terms of contract law (Kareem): It may however be argued that the native band did not understand the full consequences of building a hydro plant which nullifies their legal capacity and voiding the contract. (LCO, 2009) Bibliography: Miller, G. S., (October, 2011). Contract Law.

Noticed fuel spills (risk of future contamination of water) (Kyle) Sedimentation and erosion control has been promised in the contract to have a good water quality. However, the native band still feels that construction will affect the environment more than they had foreseen. Also, they have noticed that there will be risk of future contamination of water. This may result in potential risk for the native bands health because of the change of water quality.

Argue they are in violation of the original contract (Michael)

Further, the original contract contained an agreement to agree, as described in Dunbar and Gannons notes. (2009) Specifically, the extent to which construction impact would be minimized has not been realized in the opinion of the band, and thus they do not agree with the companys actions. Since the band has to live on the affected land, it should be at their discretion to identify what constitutes sufficiently minimized, and the band is taking this opportunity to declare they find the company is not upholding its duty. In this way, it is also not

conduct[ing] [itself] with fairness, courtesy and good faith towards clients, according to the APEGBC Code of Ethics.
In addition, expert opinion has been sought to address the lowered catch rates. Since it is the bands right to fish as they have historically, unimpeded, this is a further breach of contract and an offence.

Conclusion - editing (Dale) References APEGBC. (2011, September 29). APEGBC. Retrieved from Acts, Bylaws & Code of Ethics: http://www.apeg.bc.ca/resource/publications/actbylawscode.html Bull, Houser & Tupper. (2007). Employment Law in British Columbia. Dunbar, S. & Gannon, M. (2009). Elements of Engineering Law in Canada. Environment Canada. (2011, Dec 2). Environment of Canada. Retrieved from Acts & Regulations - CEPA Environmental Registry part 4 - Pollution Prevention Plans: http://www.ec.gc.ca/lcpecepa/default.asp?lang=En Government of Canada. (2011). Pollution Prevention Environmental Protection Act. Government of Canada. Grace, J. (2011). Introduction to Engineering Ethics. Law Commission of Ontario. (2009, December 4). Canada's Traditional and Current Legal Capacity Laws. Retrieved from http://www.ico-cdo.org/en/disabilities-call-for-papers-bachkerzner-partl-sectionV Miller, G. (n.d.). Contract Law.

Perrin, T. &. (2009, September). First Nations and Economic Prosperity in the Coming Decade. Retrieved from Business Council of British Columbia: http://www.bcbc.com/Documents/2020_200909_Perrin.pdf Santa Barbara Air Pollution Control District. (2011, Dec 2). Diesel Generators. Retrieved from http://www.sbcapcd.org/generators.htm